General Terms and Conditions

General Terms and Conditions (GTC)Version 08/2019

Preliminary Remarks

The ADFERENCE GmbH, Munstermannskamp 1, 21335 Lüneburg (hereinafter: "ADFERENCE") provides an online service on ADFERENCE’s platform for managing and controlling advertising campaigns with Google Ads and Amazon Advertising, as well as for the placement of Google Ads via the Google CSS Partner program using ADFERENCE CSS (shopping.adference.io) (hereinafter: "ADFERENCE Service").

The advertising decisions required are based on the basis of the customer’s input as well as the analysis of data collected by Google Ads and Amazon Advertising. ADFERENCE thereby automatically creates campaigns and controls the maximum cost-per-click (Max CPC) bid in accordance with the objectives defined by the customer. These objectives can be achieved by maximising the number of conversions together with maximising cost-per-action (CPA), thus achieving a target return-on-investment (ROI) and maximising the margin contribution (revenue minus cost of advertising). In addition, ADFERENCE provides settings for bid adjustments.

1. Scope

1.1. These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to the use of ADFERENCE’s password-protected service, accessible from ADFERENCE at www.adference.com, which ADFERENCE offers to its customers (hereinafter referred to as “Customers”) for commercial or stand-alone professional activity. They shall not apply to consumers in terms of § 13 BGB, i.e. natural persons who enter into a transaction for a purpose that is neither commercial nor that may be attributed to their independent vocational activity. By placing an order with ADFERENCE, the customer accepts GTC in the version valid at the time of the order. The terms and conditions can be accessed at any time on the website of the ADFERENCE service, https://bidmanagement.adference.com.

1.2. ADFERENCE reserves the right to change these GTC and the subject matter of the respective ADFERENCE Services in accordance with the contract in so far as this is necessary for good reasons, in particular due to a changed legal situation, technical modifications or further developments or other equivalent reasons and not to unreasonably disadvantage the customer. Amendments to the GTC shall be communicated to the customer in writing or by email at least 4 weeks before the date of entry into effect. The amendments will take effect if the customer does not object to this in writing or by e-mail within four weeks after receipt of the amendment notice and ADFERENCE has informed the customer of legal consequences in the amendment notice. In addition, any amendments require explicit consent of the customer. In the case of services provided free of charge, ADFERENCE is at all times entitled to amend, cancel or replace the GTC, as well as to make new services available free of charge or for consideration.

1.3. Dissenting or conflicting GTC of the Customer shall not become part of the contract. This provision shall apply even if ADFERENCE has not expressly objected to or unconditionally accepted services with the knowledge of General Terms and Conditions that are dissenting or conflicting to the customer.

2. Conclusion of the contract

2.1. The use of the ADFERENCE service requires the registration of the customer on the ADFERENCE website at www.adference.com. The customer will then receive a confirmation email with the request to activate their ADFERENCE account. By registering and activating the account, the customer makes an order for the use of the ADFERENCE service. The customer is bound to this order for 14 days.

2.2. Activation of the customer’s account does not represent acceptance of the customer’s order by ADFERENCE. In fact, the contract comes into effect only at the ADFERENCE’s discretion with explicit acceptance of the customer’s order by ADFERENCE or with the first service provision by ADFERENCE. This first service provision consists of the first optimisation of a campaign provided by the customer to ADFERENCE.

2.3. If the customer does not choose an optimisation campaign within the 14-day binding period of his order and ADFERENCE has not explicitly accepted the order beforehand, the order acceptance by ADFERENCE will be ruled out.

3. Subject of the Contract

3.1. The subject of the contract is the Internet-based ADFERENCE service made available either in return for remuneration or a free trial period agreed upon and limited to the duration of the contract.

3.2. ADFERENCE is not liable for successful implementation of a bidding strategy. In particular, ADFERENCE shall not be liable to provide a minimum number of clicks or conversions, to comply with an average CPC or CPA determined by the customer, or to exhaust the budget determined by the customer. This is particularly true in the event that the given budget is in conflict with the desired number of minimum clicks or conversions.ADFERENCE shall not be responsible for a negative campaign performance, nor for the campaign reaching the exact original state after using the ADFERENCE service due to Google Ads and Amazon Advertising dynamics. All customer-specific settings provided by the ADFERENCE service are made by the customer, who is, therefore, responsible for the successful use of the ADFERENCE service.

3.3. ADFERENCE reserves the right to offer the customer a trial period during which the customer can use the ADFERENCE service free of charge. If the customer chooses not to use the ADFERENCE service after such trial period, the account will be blocked by ADFERENCE. Further use of the ADFERENCE service beyond this period is no longer possible. The trial period may not be claimed.

3.4. The ADFERENCE service is available for use 24 hours a day, 365 days a year. ADFERENCE guarantees a 99% availability of the ADFERENCE service in the annual average. If maintenance is required, making the ADFERENCE service unavailable, ADFERENCE shall inform the customer in good time. The ADFERENCE service downtimes due to maintenance work will not be charged to the due availability. ADFERENCE is not responsible for Internet/network-related downtime, and, in particular, for downtime when the hardware and software is not accessible over the Internet due to technical or other problems beyond the control of ADFERENCE, such as force majeure, fault of third parties, etc.

4. Access to ADFERENCE service and related obligations of the customer

4.1. Only the customer, his legal representative and their employees are entitled to use it. In principle, only one concurrent user is entitled to use the service; the use by several concurrent users can affect the usability of the ADFERENCE service and is therefore not permitted. ADFERENCE reserves the right to request the customer to provide names of the authorised legal representatives and employees, who will have the access to ADFERENCE service.

4.2. The data requested by ADFERENCE at the time of the registration must be indicated completely and correctly, e.g. first and last name, current address and telephone number; these data may include, if applicable, a current commercial register extract or a valid trade license to be provided upon ADFERENCE’s request, a valid email address, the company name and the representative’s name. If such data are changed after registration, the customer shall promptly notify ADFERENCE of the relevant changes to the registered data.

4.3. The customer is responsible for keeping personal access data confidential and shall prevent them from misuse. The customer shall guarantee ADFERENCE that other users designated by the customer will keep personal access data confidential and shall prevent these data from misuse. The disclosure of the access data for the use by unauthorised third parties is considered abuse. If the customer becomes aware of any abuse of access data, ADFERENCE shall be informed thereof immediately by e-mail at the following email address: support@adference.com. ADFERENCE is entitled to immediately block the access data if they have been abused. The customer is liable for abuse committed by themselves or by their designated user.

4.4. The customer must have either a Google Ads account with conversion tracking enabled or an Amazon Seller/Vendor account.

4.5. The customer is obliged to grant ADFERENCE access to the required access to its Google Ads or Amazon Advertising accounts, depending on the service package used.

4.6. If, prior to the expiration of the contract period, the customer removes access to the Google Ads via the Google Ads API or access through the Amazon Advertising API to his Amazon Advertising account, if ADFERENCE is unable to provide the contractual services in full or in part due to other reasons within the responsibility of the customer, the latter shall pay the agreed monthly minimum fee to ADFERENCE up to the end of the contractual period.

4.7. ADFERENCE can use additional data sources to improve the data pool for the billing algorithm. By default, ADFERENCE uses data from Google Analytics through the Google Analytics API to optimize Google Ads. In order to use this feature, the customer shall allow ADFERENCE to access their Google Analytics account through the Google Analytics API during the contract period.

4.8. ADFERENCE is compatible with the current versions of Firefox and Google Chrome. Other browsers are not supported. The customer acknowledges that the optimal performance and higher speed of the ADFERENCE service may be achieved only with the current version of these browsers, and that outdated versions may result in delayed performance. The customer is responsible for ensuring that the technical requirements for ADFERENCE services access are met, in particular with respect to the hardware, the operating system, the Internet connection and the browser software, according to technical specifications provided by ADFERENCE.

4.9. If the customer transmits data to a Google Ads account or an Amazon Advertising account to which ADFERENCE has access, the customer will create backup copies of this data on their own data media prior to transmission. In the event of a data loss, the customer will transmit the relevant data to the Google or Amazon account, accessible by ADFERENCE, free of charge.

4.10. The customer will perform all necessary acts of cooperation for the fulfilment of the contract (e.g. providing approvals for the CSS connection) on time. If the customer does not perform an act of cooperation in time, the customer does not have any claim to service provision. ADFERENCE is entitled to terminate this contract extraordinarily with immediate effect after ADFERENCE has unsuccessfully requested the customer to perform the cooperative acts.

5. Rights of use

5.1. For the duration of the contract, ADFERENCE grants the customer non-exclusive (simple), non-transferable and non-sublicensable right to proper use of contractual ADFERENCE service “online” via the Internet by each user covered by the contract as a paid service (free of charge for the trial period). The customer shall not be entitled to provide copies of the ADFERENCE software or other materials required for the ADFERENCE service. All copyrights and other rights to the content of any ADFERENCE services and in particular to ADFERENCE software used for this purpose are reserved.

5.2. The customer assigns to ADFERENCE all rights of use in simple form required for the fulfillment of the contract, necessary and locally unrestricted for the duration of this contract, for the content made available within the scope of the use of ADFERENCE CSS (e.g. product images, product texts, etc.), plus a further six months after the end of the contract, in order to guarantee a reasonable end-of-use period if necessary. The customer also grants ADFERENCE the right to edit the content made available for the purpose of creating product presentations, in particular to redesign, shorten, supplement or combine it with other content. ADFERENCE is also granted the right to further license and/or transfer the rights of use transferred by customers to cooperation partners and/or third parties for the purpose of fulfilling the contract.

The customer guarantees that the publication and distribution of the content by ADFERENCE does not conflict with any third party intellectual property rights. In particular, the customer warrants that the rights of use and exploitation (including the right to personal image) of transmitted product images and other copyrighted works have been granted to the customer without any limitations in time or space and that an effective waiver of naming the originator is in place if applicable. The customer is obliged to indemnify ADFERENCE against any claims by third parties for infringements of industrial property rights through the use of the content provided by the customer upon first request and to reimburse ADFERENCE for any resulting damage - including the costs of any necessary legal defence on the basis of the applicable statutory remuneration and/or cost regulations (e.g. RVG - Lawyers' Compensation Act, GKG - Law on Court Costs). In the event of a warning from a competitor, copyright and/or other third party, ADFERENCE is entitled to cease and desist and to immediately block or remove any allegedly infringing content, product presentations or links from portals until the matter has been finally resolved. The customer is obliged to reimburse ADFERENCE for the costs incurred as a result of the warning and deletion from the portal. Furthermore, the customer is responsible for lost revenues until the contractual relationship is terminated. Irrespective of taking any of the above measures, each party shall be entitled to take, in its own name, reasonable and appropriate measures coordinated with the other party. If one party initiates legal proceedings, the other party may be entitled to participate in such proceedings, unless there are other legal grounds to the contrary.

6. Warranty

6.1. There is a defect in quality if the ADFERENCE service does not provide the contractual quality, which results in lifted or reduced suitability for the contractual use. A minor limitation of suitability is not considered.

6.2. The customer shall immediately notify ADFERENCE of any defects, faults or damages.

6.3. ADFERENCE shall fix defects upon receipt of a written comprehensible defect description by the customer within a reasonable period.

6.4. The customer is entitled to terminate the contract for the reason of non-compliance with the use pursuant to Section 543 item 2 No. 1 BGB only when the defect has not been removed within a reasonable time or is deemed to have failed.

6.5. Furthermore, the client’s right to demand compensation, if the statutory requirements are fulfilled in accordance with the provisions of Section 7 below, shall remain unaffected.

7. Liability

7.1. ADFERENCE is held liable under the statutory provisions for damage

a) arising from injury to life, body or health caused by intentional or negligent breach of duty and, accordingly, an intentional or negligent behaviour of ADFERENCE, their legal representatives or vicarious agents;
b) due to the lack of warranted characteristics or non-compliance with warranty;
c) due to intentional or negligent breach of duty and, accordingly, an intentional or negligent behaviour of ADFERENCE, their legal representatives or vicarious agents.

7.2. ADFERENCE shall be liable, subject to limitation, for the damages predictable for such damages, which are based on a slightly negligent breach of essential obligations by the licensor or one of its legal representatives or vicarious agents. Essential obligations are duties which enable the proper fulfilment of the contract in the first place and the observance whereon the customer may rely.

7.3. The strict liability of ADFERENCE pursuant to Section 536a item 1, 1. of Alternative BGB for defects, which are already present at the time of the contract’s conclusion, is excluded.

7.4. ADFERENCE shall only be liable for loss or damage caused by a negligently caused loss of data, which would also have occurred if the customer had duly and periodically backed up the data with regard to its importance; this limitation shall not apply if the data backup was impaired or inaccessible for reasons for which the licensor is responsible.

7.5. The foregoing provisions shall apply mutatis mutandis to the ADFERENCE’s liability with regard to compensation for futile expenses.

7.6. Any liability under the Product Liability Act shall remain unaffected.

7.7. In the event that a free trial period has been agreed with the customer, the liability of ADFERENCE for the services provided during the trial period shall differ from the above provisions under Sections 599, 600 of BGB.

8. Remuneration and invoicing

8.1. Unless otherwise agreed in writing by the parties, the prices of ADFERENCE services valid at the time of the conclusion of the contract may be found at www.adference.com.

8.2. Unless otherwise agreed, the monthly basic remuneration and the variable monthly remuneration shall be payable at the end of the respective calendar month. If the contract is not concluded or terminated at the beginning or end of a calendar month, the basic remuneration is to be paid pro rata temporis.

8.3. All of the above-mentioned remuneration and prices are subject to the relevant statutory value-added tax, insofar as this is not already accounted.

8.4. In the event of the customer default, ADFERENCE has the right to block the ADFERENCE service until all outstanding dues resulting from the business relationship with the customer, irrespective of the legal reason, have been compensated by the customer. In the event of default, the customer shall pay interest on the debts according to the statutory provisions.

8.5. The customer may only offset undisputed claims, claims which have been legally confirmed or exercise a right of retention. The customer can assign claims from this contract to third parties only with the written consent of ADFERENCE.

9. Beginning, duration and termination of contract; trial period

9.1. During a free trial period granted to the customer, the customer may terminate the contract at any time without notice. A free trial period starts with the conclusion of the contract and ends after the period of 30 days, unless a different period has been agreed or terminated prematurely. If the customer does not terminate the contract during the trial period, the trial period shall proceed to the fee-based use.

9.2. The contractual relationship for actual use shall run for one contract year. It shall be renewed every year for another one-year period, if it has not been terminated by either party within a period of three months prior to the end of the current contract year.

9.3. If contractual relationships regarding the fee-based use is agreed separately in writing, they shall run to the end of the contract term. It shall be extended by the originally agreed term if it has not been terminated by either party before the end of the contract term within a period of one (1) month.

9.4. The right of both parties to terminate the contract without notice for good reason shall remain unaffected. A good reason for the ADFERENCE to terminate the contract without notice is, in particular, the customer’s failure to have made more than two monthly payments.

9.5. If there is an important reason that entitles ADFERENCE to terminate the contract without notice, ADFERENCE may immediately block the customer’s access to ADFERENCE service. Termination without notice is done simultaneously with the account blocking.

9.6. Subject to clause 9.7 item 2, termination shall be made in writing or by email. The customer shall forward their termination notice by email to: support@adference.com.

9.7. The data generated in ADFERENCE on ADFERENCE servers will be deleted by ADFERENCE at the latest 120 days after termination. The customer shall no longer have access to their ADFERENCE account after termination.

10. References

ADFERENCE shall be entitled to place the customer at a suitable place on the ADFERENCE website as well as in other advertising materials as a reference. This agreement may be revoked at any time with effect for the future.

11. Final Provisions

11.1. For any contract between the Supplier and the Customer, the law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and those provisions that refer to another jurisdiction.

11.2. Place of performance shall be Lüneburg.

11.3. If the customer is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction for all disputes arising from contractual relationships between the customer and ADFERENCE is Lüneburg.